Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-12-16
THE HIGHER COURTS.
Synopses Of Decisions Rendered as the
Present Tyler Sitting OF the
Higher Courts OF Texas.
Gases Reversed and Remanded, Dismissed,
Reformed and afirmed-RsnderiDgs
In Long Delayed Gases.
Com omission Of Appeals.

the Magnolia Cattle and Land Company
appeal from Howard county. Appellee
brought this suit against appellant to re
cover section of school land, claiming
same under lease under section II oil
the act of 1883, said land having beer
leased to appellee upon its application
therefor as "dry pasture land" Appellant
| pleads title to the land in controversy
under purchase from the state as an
actual settler, made after appellants lease
| was awarded. Held: In a contest be-
tween the lessee and the purchaser, under
the circumstances stated above, the pur-
chaser has the title by the express pro-
visions Of the law. In order then to de.
feat recovery by defendant, plaintiff
offered and read In evid, nee over de-
fendant's objection second lease class
ing the land as "watered land" Held
Error. Plaintiff had pleaded the original
lease and title themselves, and claimed
the right to recovery by virtue thereof
having elected to do so no other title
could be offered. Reversed and re-
manded. Collard, j.
W. A. Taylor VS.. T. B. Cox; appeal
from McLennan county. Cox entered
into contract with Taylor to the effect
that if he, Cox, would sell 312s acres of
land in Limestone county, the title to
which was IN Nelson Beal, but Taylor
having authority to sell, he should have
as compensation for his services all In ex-
cess OF 50 an acre the land brought. Cox
clsimed that he negotiated q sale of the
land to one Moore at 90 2S per acre, but
that Moore refused to complete the trade
on account OF Taylor informing him
that the owner held the land st So per
acre. This suit was brought to recover
compensation for the negotiation. The
charge of the court made Taylor liable
for damages absolutely, and at all events,
il his conduct caused Moore to refuse to
perform his agreement with Cox. Held:
Error. II the acts and conduct of Tay.
lor was in bad faith towards
Cox or done with intent to
evade the payment OF commits
sions that he had earned, or If the set was
wilfully done and It's necessary conse-
quence WAS to influence Moore not to
comply with his contract, then Taylor
would be answerable tor all damages thus
occasioned. But if Moore discovered the
owners price Of the land through an &C
cident. and without fault or negligence
on the part of Taylor in impsrting the in
formation, there would be damage with
out fault and no action would lie, if there
was fault or negligence on the part of
Taylor it would be otherwise. Reversed
and remsnded. Maltbe, P. j..
Roden T. Crane vs.. S. A. Hogan; appeal
from Bosque county. Opinion on motion
to dismiss writ OF error. The petition in
error sets out the judgment in ex-
tense 1t is judgment in favor of de-
PENDANT in error and against plsintif in
error, for tract of land and for costs.
The citation does not show that q
Judgment was rendered against
plaintiff in error, nor for what the iudg-
ment complained of was rendered. It
does not state "the description of the
Judgment" as given in the petition, and is
therefor insufficient. The case ls, there
fore, Improperly in this court and should
be stricken from the docket. Acker, J.
j. d. B.ICole vs.. Jesse Estell; appeal
from McLennan county. The dit position
Of this case here depends upon the con-
struction to be given to the opinion Of
this court delivered on former appeal,
as that opinion appears in the So vol
OF our reports. The cases are rare, and
very exceptional, In which this court is
warranted in limiting the issues of fact in
reversing and remsnding a case where q
trial hiss been had by jury, and to author
ize such Interpretation, it must
clearly appear from the decision
that it was so intended. We do
not think the court intended by the pre-
vious decision to limit the issues as con-
tended by appellee, and as held by the
~ hol and mo think
in go holding. It appears that the jury,
under the charge of the court, returned q
general verdict and also verdict upon
special issues. Held: The Revised Stat
utes, articles 1928 ard 1888, authorize
either general or special Verdict, but we
do not think the statute contemplates
both, and the practice should not be fol-
lowed. Reversed and remanded. Ack-
er. j.
E a. Graham ct al. vs. McCArty &
Brown; appeal lrom Hood. l. That the
due order OF pleading requires that q plea
in abate ment should precede answers to
the merits of either law or fact is ele-
mentary. 2. Where matters stated in q
plea in abatement do not appear of
record, the plea must be sworn TO and the
affidavit must be to the truth Of the plea,
and not that it is true to the best of afi-
ants knowledge and belief. 8 It Is error
where the court below charges upon an
issue which is raised neither by the
pleadings nor the evidence. Reversed and
remsndes. Acker, j.
Fears ct al vs.. Albea ct al; appeal
from McLennan. Trespass to try title.
/, II third party pay the entire debt in
pursuance OF an agreement between him
and the debtor, upon his so doing he shall
be subrogated to the creditors rights.
q. When mortgage is paid by one VINO
is under no obligation to pay 1t,
although he does not take formal as
signment, he is subrogated to the rights
Of the mortgage in the mortgaged prop
erty and holds the title acquired against
: ubsesuent membranes, although be
had also acquired the equity OF redemp-
ton. s. In general, any person having 3
subsequent interest IN premises and not
primarily liable for the mortgage debt,
who pays off the mortgage, thereby be-
comes an equitable assignee of it.,
ana may keep the mortgage alive and
enforce the lien for his own ben
eft. L. A motion for a new trial made
on the ground OF newly discovered evi.
dence, when such evidence Is merely
cumnfatiJa and fonds onlv IN corfra dirt